| Steiner v Dincesen |
| 2012 NY Slip Op 03438 [95 AD3d 877] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Elizabeth A. Steiner, Respondent, v Jenna L. Dincesen etal., Respondents, and Sunny Augustine et al., Appellants. |
—[*1] GiuffrÉ Law Offices, P.C., Garden City, N.Y. (John J. GiuffrÉ of counsel), forplaintiff-respondent. Martyn, Toher & Martyn, Mineola, N.Y. (Lisa Mammone Rossi of counsel), fordefendants-respondents.
In an action to recover damages for personal injuries, the defendants Sunny Augustine andRaji Augustine appeal from an order of the Supreme Court, Nassau County (Adams, J.), enteredJuly 6, 2011, which denied their motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs payable to the respondents appearingseparately and filing separate briefs.
The plaintiff was a passenger in a vehicle operated by the defendant Jenna L. Dincesen andowned by the defendant Rochelle Stein when that vehicle was involved in a two-car collision.The other vehicle involved in the collision was operated by the defendant Sunny Augustine(hereinafter Sunny) and owned by the defendant Raji Augustine (hereinafter together theAugustine defendants). The collision occurred at an intersection controlled by a traffic light.
Notwithstanding the fact that Dincesen was negligent as a matter of law for violating theVehicle and Traffic Law (see Vainer vDiSalvo, 79 AD3d 1023, 1024 [2010]) by either failing to cautiously enter theintersection to make a right turn after stopping (see Vehicle and Traffic Law §1111 [d] [2] [a]) or by failing to stop at the red light altogether in making her right turn(see Vehicle and Traffic Law § 1111 [d] [1]; Grossman v Spector, 48 AD3d 750, 751 [2008]), there maynevertheless be more than one proximate cause of a traffic accident (see Gause v Martinez, 91 AD3d595 [2012]; Lopez vReyes-Flores, 52 AD3d 785, 786 [2008]). Further, a driver traveling with theright-of-way may be found to be comparatively negligent in causing an accident if he or she doesnot use reasonable care to avoid the accident (see Todd v Godek, 71 AD3d 872 [2010]; see also Cox v Nunez, 23 AD3d427, 427-428 [2005]), as all drivers are required to " 'see that which through proper use of[his or her] senses [he or she] should have seen' " (Vainer v DiSalvo, 79 AD3d at1024,quoting Bongiovi v Hoffman, 18AD3d 686, 687 [2005]).[*2]
Here, in denying the Augustine defendants' motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem, the Supreme Court properly determined that they failed to conclusively demonstrate thatDincesen's negligence was the sole proximate cause of the subject collision. Although the vehicleoperated by Sunny had the right-of-way as it approached the intersection, and Sunny was entitledto anticipate that Dincesen would obey the traffic laws, Sunny also had a duty to use reasonablecare to avoid the collision (see Pollack vMargolin, 84 AD3d 1341, 1342 [2011]). The conflicting testimony set forth in thetranscripts of Sunny's and Dincesen's depositions, as well as that contained in the plaintiff'saffidavit, regarding the circumstances surrounding the accident, raised triable issues of fact as towhether Sunny contributed to the happening of the accident (see Kaplan v County of Nassau, 60 AD3d 816, 817 [2009]; cf.Grossman v Spector, 48 AD3d at 751), specifically as to when he first saw Dincesen'svehicle and whether he had adequate time to perceive and react to its entry into the intersection(see Bonilla v Gutierrez, 81 AD3d581, 582 [2011]; Cox v Weil,66 AD3d 634, 635 [2009]).
Accordingly, the Supreme Court properly denied the Augustine defendants' motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem. Rivera, J.P., Florio, Chambers and Cohen, JJ., concur.